Case law professor argues for legalizing, subsidizing cognition enhancing drugs
What if drugs become available which can enhance the mental capabilities of healthy individuals?
December 17, 2004 | For more information: Jeff Bendix (216)-368-6070
 The development of ever-more powerful drugs for treating Alzheimer’s disease and other mental impairments raises the tantalizing possibility that sometime in the not-too-distant future, drugs may become available which can substantially enhance the mental capabilities of healthy individuals. If that happens, it could profoundly affect American society’s views of how individuals achieve success, and may lead to a call for banning or severely restricting the use of such drugs. But one law professor who has given a lot of thought to these issues believes that cognition enhancing drugs should not only be legal, but subsidized for those who cannot afford them.
Writing in Volume 82 Number 3 of The Milbank Quarterly Max Mehlman, professor and director of the Law-Medicine Center at the Case Western Reserve University School of Law, and professor of bioethics in the Case School of Medicine, acknowledges that cognition enhancing drugs could change the way Americans view success. One of the foundations of American society is the belief that with enough talent, luck and hard work anyone can attain success in their chosen field. To those attributes would have to be added the use of drugs which can increase alertness, improve mental stamina, and even enhance executive functions.
Mehlman’s essay appears at a time of increasing alarm over the “off label” use, and illegal distribution, of drugs for enhancement purposes. A recent article in The Christian Science Monitor, for example, describes the growing use of the drug Adderall among college students to improve their concentration and stamina while studying. Adderall is widely prescribed for treating attention deficit disorder (ADD) and attention deficit hyperactivity disorder (ADHD), mainly among young children.
Mehlman points out that banning such drugs would be virtually impossible. It would require a vast, expensive testing program and would almost certainly give rise to a black market. “The last thing the rule of law needs is for an enormous portion of the population to be converted into criminals because they try to become more productive at work or to do better in school,” he writes.
Moreover the Controlled Substance Abuse act, as currently written, allows the government to designate a drug as a controlled substance only if there is a potential for the drug to lead to physical or psychological dependence. Arguing that cognitive enhancement ought to be controlled would be difficult, since substances such as nicotine and caffeine are not, Mehlman says.
A better approach, Mehlman believes, would be to make cognition enhancing drugs legal and have the Food and Drug Administration require manufacturers to prove that the drugs are safe and effective before being allowed to sell them. Current cognition enhancing drugs are marketed as dietary supplements or for “off-label” uses, exempting them from those requirements.
But even if new cognition enhancing drugs are safe and effective they will be expensive, raising questions of fairness and equality. People with the wealth or connections to obtain such drugs would then get even greater advantages in life. The solution, Mehlman argues, is to make the drugs available on the open market to those who can afford them and subsidize them for people who cannot. “By making these products widely available, society would gain the benefits of the achievements they made possible and reduce or at least refrain from exacerbating the inequalities that stemmed from differences in wealth,” Mehlman writes.
Such an approach, he adds, is not as radical as it might first appear. Many private insurers, for example, pay for Viagra, which is often used for enhancement purposes, and the federal government ordered states to cover the drug under Medicaid beginning in 1998. Congress could mandate that Medicare cover cognitive enhancing drugs, thus making them available to the widest possible range of people.
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